Memorandum of Points and Authorities in Opposition to Motion to Dismiss by uoa18940

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									                         IN THE UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                           )
PUBLIC EMPLOYEES FOR                       )
ENVIRONMENTAL RESPONSIBILITY, )
et al.,                                    )
                                           )
               Plaintiffs,                 )
                                           )
        v.                                 )           No. 05-CV-02437 (CKK)
                                           )
STEPHEN JOHNSON,                           )
Administrator, United States Environmental )
Protection Agency, et al.                  )
                                           )
               Defendants.                 )
                                           )

             PLAINTIFFS’ MEMORANDUM OF POINTS & AUTHORITIES
            IN OPPOSITION TO DEFENDANT EPA’S MOTION TO DISMISS

       Presently before the Court is Defendant U.S. Environmental Protection Agency’s (EPA)

Motion to Dismiss pursuant to the Federal Rules of Civil Procedure (Fed. R. Civ. P.), Rule

12(b)(1), alleging that the Court lacks subject matter jurisdiction. EPA contends that the general

six year statute of limitations applicable to civil actions against the United States found at 28

U.S.C. § 2401(a) bars this action. In fact, that provision does not bar Plaintiffs’ suit, and EPA’s

Motion should be denied.

                                    STATEMENT OF FACTS

       Childhood lead poisoning is an issue of significant concern to the public and public

health professionals. Complaint ¶s 31 - 33, 36, 38 - 40. Relatively recent data used to measure

lead in children’s bodies reveals that over 400,000 children have elevated blood lead levels.

Complaint ¶ 18. Despite the efforts of public health officials to measure and qualify the impacts

of lead exposure, no “safe” level of lead exposure has been determined. In other words, no
threshold has been discovered below which blood lead levels in children can be presumed to

have no impact. Complaint ¶ 20.

       To combat this serious public health problem, Congress amended the Toxic Substances

Control Act (TSCA) in 1992. See, generally, 15 U.S.C. §§ 2601 - 2692. Specifically,

Subchapter IV, entitled Lead Exposure Reduction, was added to TSCA to address the problems

of exposures caused by lead-based paint. See, TSCA, 15 U.S.C. §§ 2681 - 2692. The 1992

amendments to TSCA set forth deadlines by which the EPA was to issue rules and regulations

regarding lead-based paint and lead-based paint activities, with the ultimate goal of eliminating

lead-based paint hazards by 2010. 15 U.S.C. § 2682.

       Pursuant to TSCA, EPA was required to:

       (a)     Issue final regulations governing lead-based paint activities by April 28, 1994, to

make sure that individuals are properly trained; that training programs are accredited; that

contractors engaged in such activities are certified. 15 U.S.C. § 2682(a)(1). Lead-based paint

activities include abatement, inspection, and risk assessment—they do not include Renovation

and Remodeling (“R&R”). 15 U.S.C. § 2682(b).

       (b)     Issue guidelines for R&R activities by April 28, 1994. 15 U.S.C. § 2682 (c)(1).

       ( c)    Conduct and publish the results of a study of the extent to which people engaged

in R&R are exposed to lead (either through the work itself or because they disturb lead and create

a lead-based paint hazard) by April 28, 1995. 15 U.S.C. § 2682(c)(2).

       (d)     Revise the regulations governing lead-based paint activities “to apply the

regulations to renovation or remodeling activities in target housing, public buildings constructed




                                                 2
before 1978, and commercial buildings that create lead-based paint hazards by October 28, 1996.

15 U.S.C. § 2682( c)(3).

        Although EPA proceeded as though it would issue regulations covering R&R activities in

target housing, public building constructed before 1978, and commercial buildings that create

lead-based paint hazards, no regulation was issued. For example, in November 1996, EPA

announced in the Federal Register that it intended to promulgate the regulations by December

1998. See, Exhibit 1, Excerpt from November 29, 1996 Federal Register.

        In April 1997, EPA notified the public that it would issue final regulations as mandated in

TSCA § 402(c)(3) (15 U.S.C. § 2682(c)(3)) by March 1999. See, Exhibit 2, Excerpt from April

25, 1997 Federal Register.

        In April 1998, EPA made another public announcement regarding the promulgation of

regulations for renovation and remodeling activities involving lead-based paint. The agency

stated that it would issue final regulations in June 2000. See, Exhibit 3, Excerpt from April 27,

1998 Federal Register. In November 1998, EPA again revised its regulatory schedule

announcing that final regulations would be issued by September 2001. See, Exhibit 4, Excerpt

from November 9, 1998 Federal Register.

       In December 2004, EPA stated that it was pursuing a voluntary program for R&R

activities. See, “Lead-based Paint Activities; Abatement Amendments for Renovation and

Remodeling,” Federal Register , Vol. 69, No. 238, p. 73901 (December 13, 2004). However, by

December 2005, the agency withdrew its proposal for a voluntary program. See, “Lead-based

Paint Activities; Voluntary Program for Renovation and Remodeling,” Federal Register, Vol. 70,

No. 93, p. 27633 (May 16, 2005). No further proposal to address the agency’s mandate under


                                                3
TSCA to promulgate R&R regulations appeared to be forthcoming; prompting Plaintiffs to file

this lawsuit.

                                           ARGUMENT

I. EPA HAS NOT ASSERTED GROUNDS FOR A JURISDICTIONAL DISMISSAL

        EPA has sought dismissal under Fed.R.Civ.P. 12(b)(1), providing for a defense of “lack of

jurisdiction over the subject matter,” claiming that the statute of limitations provided by section

2401(a) is “a limit on the Court’s Jurisdiction.” EPA Motion at 3. However, the Supreme Court

has expressly rejected the proposition that time limitations with respect to suits against the United

States are jurisdictional. In Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990), the Supreme

Court rejected the lower court’s holding that the statute of limitations there “operates as an

absolute jurisdictional limit.”1 Rather, the Court found, the limitations period was subject to

equitable tolling. 498 U.S. at 95-96. The Supreme Court has since repeatedly confirmed that,

despite pre-Irwin statements to the contrary, federal statutes of limitations, “are not properly typed

jurisdictional.” E.g., Scarborough v. Prinicipi, 541 U.S. 401, 414 (2004); Arbaugh v. Y & H

Corp., 126 S. Ct. 1235, 1242 (2006).

        The D.C. Circuit has also recognized that while pre-Irwin cases regarded “a statutory time

limit [as] an integral condition of the sovereign’s consent” to be sued and a “prerequisite to

jurisdiction,” Irwin clarified that this was not the case. Chung v. Dept. of Justice, 333 F.3d 273,

276 (D.C. Cir. 2003). See also, Harris v. Fed. Aviation Admin., 353 F.3d 1006, 1013, n.7 (D.C.

Cir. 2004) (noting that while earlier D.C. Circuit cases construed section 2401(a) as a


         1
           498 U.S. at 92. The statute of limitations at issue in Irwin, 42 U.S.C. § 2000e-16(c), set
 out the time for filing employment discrimination suits under Title VII of the Civil Rights Act of
 1964.

                                                  4
jurisdictional bar, since Irwin, that holding has been brought into question).2

        EPA nevertheless claims, in reliance on Felter v. Norton, 412 F. Supp. 2d 118 (D.D.C.

2006), that even after Irwin, the statute of limitations in section 2401(a) remains jurisdictional

with respect to claims which are not “of a type familiar to private litigation.” EPA Motion at 11,

citing, 412 F. Supp. 2d at 122. The Felter court relied upon the analysis in Chung, which actually

examined the question of when the statute of limitations would be subject to equitable tolling

under Irwin, not the question of jurisdiction. 333 F.3d at 276-77. The Felter analysis thus

confuses two different issues addressed in Irwin: 1) whether statutes of limitations for actions

against the government are jurisdictional; and 2) whether a particular cause of action under a

particular statute of limitations is subject to equitable tolling.

        The basic holding of Irwin is not limited to the particular exception to the statute of

limitations addressed there, equitable tolling. Rather, the Court adopted a general rule that

statutes of limitations against the government are not jurisdictional, and are subject to exceptions.

As detailed below, courts have applied several different exceptions to statutes of limitations for

suits against the government, not just equitable tolling.3 The fact that equitable tolling is not

available in a particular case does not mean that the statute of limitations is not subject to any

equitable exceptions at all, i.e., is jurisdictional.

        Subsequent Supreme Court cases such as Scarborough and Arbaugh have confirmed that



         2
         Thus, EPA’s reliance on the pre-Irwin cases of United States v. Mottaz, 476 U.S. 834,
 841 (1986) and Spannus v. Department of Justice, 824 F.2d 52 (D.C. Cir. 1987), is misplaced.
 EPA Motion at 4-5.
         3
         As EPA acknowledges, Motion at 11, the logic of Irwin and Chung should extend
 beyond equitable tolling to the continuing violation doctrine.

                                                        5
Irwin ruled broadly that statutory time limits in general are not jurisdictional. These cases state

that the “jurisdictional” category is not to be applied to “claim-processing rules, but only for

prescriptions delineating the classes of cases (subject matter jurisdiction) and the persons

(personal jurisdiction) falling within a court’s adjudicatory authority.” E.g., Scarborough, 541

U.S. at 413-14, quoting, Kontrick v. Ryan, 540 U.S. 443, 454-455 (2004). In other words, Irwin’s

ruling on the non-jurisdictional nature of statutes of limitation was not dependent on whether a

particular cause of action was subject to equitable tolling under a particular statute of limitations.

See also, e.g., Supermail Cargo v. United States, 68 F.3d 1204, 1206, n. 2 (9th Cir. 1995) (Irwin

held that federal statutory time limitations on suits against the government are not jurisdictional in

nature); Lord v. Babbitt, 943 F. Supp. 1203, 1210 (D. Alaska 1996), aff’d on other grounds, 188

F.3d 513 (9th Cir. 1999), cert. denied, 530 U.S. 1214 (2000) (“After Irwin, federal statutes of

limitations are no longer jurisdictional”).

       The question of when the doctrine of equitable tolling is available is a separate one, and

post-Irwin Supreme Court decisions have indeed ruled that the doctrine is not applicable to certain

statutory schemes, for reasons peculiar to those statutes. United States v. Brockamp, 519 U.S. 347

(1997) (tax laws); United States v. Beggerly, 524 U.S. 38 (1998) (Quiet Title Act). Those cases

did not hold, and could not hold, consistent with Irwin, Scarborough and Arbaugh, that statutes of

limitations which are not subject to equitable tolling are therefore jurisdictional.

       It seems that the court in Felter looked at the case law concerning when equitable tolling

applies, and wrongly assumed that when it does not apply, the applicable statute of limitations is




                                                   6
rendered jurisdictional. This is a confusion of the issues and a misreading of the precedents.4

       Thus, EPA has failed to assert grounds for a jurisdictional dismissal under Fed.R.Civ.P.

12(b)(1). The absence of grounds for a jurisdictional dismissal has implications with regard to the

classification of EPA’s motion, which impacts the standard of review and the evidence to be

considered, as discussed in Part II below. Equally important is how this fact impacts the merits of

EPA’s claim. Plaintiffs’ claim is not subject to a jurisdictional dismissal because the Supreme

Court has held that in spite of the government’s sovereign immunity, statutes of limitations for

suits against the United States are not absolute, but are subject to exceptions based on various

equitable doctrines and policy considerations which the Court must take into account. For

example, courts have found exceptions for equitable tolling, e.g., Irwin, and for continuing

violations. E.g., American Canoe Ass’n v. EPA, 30 F. Supp. 2d 908, 925-26 (E.D. Va. 1998).

       There is also a doctrine which tolls the statute of limitations on substantive challenges to

federal regulations until the time a particular plaintiff is adversely affected by the regulations. In

Wind River Mining v. United States, 946 F.2d 710, 715 (9th Cir. 1991), the Ninth Circuit relied on

D.C. Circuit precedent to find that this doctrine, as applied to section 2401(a), “strikes the correct

balance between the government's interest in finality and a challenger's interest in contesting an



        4
            Furthermore, as discussed below (Part IV), Felter’s conclusion, based on Chung, that
 equitable tolling does not apply to causes of action that “do not have an analogue in private
 litigation and are not injuries of a type familiar to private litigation,” 412 F. Supp. 2d at 123, is
 faulty. The the subsequent Supreme Court decision in Scarborough rejected a claim that Irwin
 did not apply to a cause of action with no analogue in private litigation, stating that “it is hardly
 clear that Irwin demands a precise private analogue. . . . Irwin’s reasoning would be diminished
 were it instructive only in situations with a readily identifiable private-litigation equivalent.” 541
 U.S. 401, 422 (2004). Also, the only Supreme Court cases that determined that equitable tolling
 did not apply, Scarborough and Brockamp, did so on other grounds, and not because the claims
 there were not “of a type familiar to private litigation.”

                                                   7
agency's alleged overreaching.” Accord, e.g., Dunn-McCampbell Royalty Interest v. National

Park Service, 112 F.3d 1283, 1287 (5th Cir. 1997); Alaska Legislative Council v. Babbitt, 15 F.

Supp. 2d 19, 24 (D.D.C. 1998). This particular doctrine, while not directly applicable to the facts

here, is relevant because it demonstrates that, without running afoul of sovereign immunity, courts

may fashion exceptions to statutes of limitations based upon equitable principles such as policy

considerations and a balancing of interests.

       As discussed in Parts III and IV below, here the equities, as well as the case law, weigh

heavily in favor of requiring EPA to comply with its congressionally-mandated nondiscretionary

duty, rather than being permitted to evade that duty simply because it has failed to act for a

sufficiently long period of time. This is especially the case because EPA lulled the public into

believing that it would be issuing the required regulations at least until 2001, well within the

statute of limitations. It did not become apparent that EPA had abandoned all efforts to comply

with its statutory duty until December, 2005. See, Statement of Facts, above, and Part IV, below.

II. EPA’S MOTION MAY DENIED UNDER RULE 12(b)(6), OR IN THE ALTERNATIVE,
    CONVERTED INTO A SUMMARY JUDGMENT MOTION

       Assuming that EPA’s motion can be decided on the pleadings, it may be converted into a

motion to dismiss for failure to state a claim under Rule 12(b)(6). See, e.g., Gordon v. Nat’l

Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982) (the proper means to raise a defense of

limitations is by 12(b)(6), not 12(b)(1)); Supermail Cargo, 68 F.3d at 1206, n. 2 (“because the

question whether Supermail's claim is barred by the statute of limitations is not a jurisdictional

question, it should have been raised through a Rule 12(b)(6) motion to dismiss for failure to state

a claim, not a Rule 12(b)(1) motion to dismiss for lack of jurisdiction”).



                                                  8
       Under Rule 12(b)(6), there is a different standard of review from that applicable to

12(b)(1).

       Because subject-matter jurisdiction focuses on the court's power to hear the claim .
       . . the court must give the plaintiff's factual allegations closer scrutiny when
       resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)
       motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69
       (D.C. Cir. 2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.
       Supp. 2d 9, 13 (D.D.C. 2001). Moreover, the court is not limited to the allegations
       contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.
       1986), vacated on other grounds, 482 U.S. 64, (1987). Instead, to determine
       whether it has jurisdiction over the claim, the court may consider materials outside
       the pleadings. Herbert v. Nat'l Acad. of Scis., 406, 974 F.2d 192, 197 (D.C. Cir.
       1992).

FEC v. Club for Growth, Inc., 432 F. Supp 2d 87, 89 (D.D.C. 2006). See, EPA Motion at 3.

       In contrast, under Rule 12(b)(6), a complaint may not be dismissed “unless if appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In addition, a Rule 12(b)(6) motion

may be entertained only if materials outside of the pleadings are not needed to resolve the motion.

Rule 12(b); Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003) (See, Part III of the Court’s

opinion). “A complaint is subject to dismissal under 12(b)(6) when its allegations, on their face,

show that an affirmative defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352,

1357 (11th Cir. 2003) (emphasis supplied). If outside materials are needed, the court must convert

the motion into one for summary judgment, and afford the parties a reasonable opportunity to

present materials pertinent to a Rule 56 motion. Gordon, 675 F.2d at 360. Accord, Marshall

County Health Care Authority v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993).

       Plaintiffs contend that Defendant’s Motion should be dismissed pursuant to Rule 12(b)(6),

based on the arguments presented in Part III, below. No materials outside of the pleadings are


                                                  9
needed to determine that the six year statute of limitations under section 6401(a) is not applicable,

either because TSCA provides that there is no outside limitation on when a citizen suit can be

brought, or because section 6401(a) does not apply to claims that agencies have failed to perform

nondiscretionary duties. If however, the Court does not accept those arguments, it must consider

Plaintiffs’ alternative argument that the statute of limitations is subject to equitable tolling (Part

IV). To determine that question, the court may need to examine facts outside of the pleadings

concerning EPA’s actions with regard to the mandated rulemaking at issue here. Plaintiffs have

submitted exhibits in support of their equitable tolling argument which are excerpts from Federal

Register notices. If the Court determines that it cannot take judicial notice of these notices, or if

EPA wishes to supply additional facts in response, EPA’s motion would need to be converted into

a Rule 56 motion for summary judgment.5

III. THE STATUTE OF LIMITATIONS PROVIDED IN § 2401(a) DOES NOT APPLY TO
CITIZEN SUITS SEEKING TO ENFORCE EPA’S MANDATORY DUTIES UNDER TSCA

        EPA’ Motion should be denied as a motion under Rule 12(b)(6), because the statute of

limitations provided in § 2401(a) does not apply to citizen suits seeking to enforce EPA’s

mandatory duties under TSCA.



         5
           See, Supermail, 68 F.3d at 1206-07: “Because the applicability of the equitable tolling
 doctrine often depends on matters outside the pleadings, it ‘is not generally amenable to
 resolution on a Rule 12(b)(6) motion.’ . . . Cervantes v. City of San Diego, 5 F.3d 1273, 1276
 (9th Cir. 1993). . . . For this reason, we have reversed dismissals where the applicability of the
 equitable tolling doctrine depended upon factual questions not clearly resolved in the pleadings.
 See Cervantes, 5 F.3d at 1277; Emrich v. Touche Ross & Co., 846 F.2d 1190, 1199 (9th Cir.
 1988); Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir. 1987). Similarly, we must
 reverse if the factual and legal issues are not sufficiently clear to permit us to determine with
 certainty whether the doctrine could be successfully invoked.”



                                                   10
       A. TSCA’s Citizen Suit Provision Permits Complaints to Be Filed at Any Time, as Long
       as at Least 60 Days Has Elapsed after Provision of Notice to the Administrator of EPA.

       EPA’s Motion rests on the assumption that 15 U.S.C. § 2619(a), the citizen suit provision

of TSCA under which Plaintiffs have brought suit, does not specify a limitations period, and that

therefore the general six year statute of limitations in 28 U.S.C. § 2401(a) is applicable. EPA

Motion at 3. That basic assumption is incorrect. Section 2619 does contain a “Limitation”

section, found at section 2619(b). It does not dictate a limitation period for citizens seeking

enforcement of EPA’s nondiscretionary duties. It provides only that such suits may not be

commenced before the expiration of 60 days after the plaintiff has given notice to the

Administrator. There is no dispute but that Plaintiffs have met that condition.

       The fact that the section provides only a minimum time after notice to the Administrator

for filing suit, and does not specify an outer limit to that time, does not mean that Congress

intended the outer limit to be supplied by another statute. Congress certainly could have

established such a limit when it addressed “limitations” in TSCA. It chose not to do so, and so it

must be assumed that an unlimited period was intended. See, Northwest Bank Minnesota

National Ass’n v. FDIC, 312 F.3d 447, 451 ( D.C. Cir. 2002) (When a statute has a specific

limitations period, the catch-all provision at section 2401(a) does not apply). Plaintiffs have not

discovered any case law indicating that section 2401(a) sets a limitation period for TSCA citizen

suits and EPA cites nothing indicating that Congress intended section 2401(a) to apply.

       The absence of a limited period for filing suits to compel EPA to perform nondiscretionary

duties comports with the general purpose of citizen suit provisions. The Supreme Court has

described the “obvious purpose”of a nearly identical citizen suit provision in the Endangered



                                                 11
Species Act as “to encourage enforcement by so-called ‘private attorneys general,’” with the intent

“ to permit enforcement by everyman.” Bennett v. Spear, 520 U.S. 154, 166 (1997). The Bennett

Court relaxed the usual standing requirements (to eliminate the “zone of interests” test), in order

to further this congressional purpose. A congressional intent not to set a time limit on citizen

efforts to enforce TSCA is equally plausible, and is consistent with the plain language of the

citizen suit provision itself.

        The absence of a statute of limitations also makes sense in terms of the purposes intended

to be served by such “statutes of repose,” which are “to quiet stale controversies, the evidence as

to which may be eroded by time.” Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., Inc., 452

F.2d 1346, 1356 (D.C. Cir. 1971). With regard to the failure to perform a nondiscretionary duty,

there is no issue of a stale controversy or of evidence eroded by time, and thus no purpose to be

served in imposing a statute of limitations. The Supreme Court has ruled that where a violation is

continuing in nature, the staleness concerns intended to be addressed by statutes of limitations are

not invoked, and any applicable statute of limitations is tolled. Havens Realty Corp. v. Coleman,

455 U.S. 363, 380 (1982). Because TSCA’s citizen suit provision at 15 U.S.C. §2619(a)(2) is

applicable only to continuing violations, i.e., to situations in which EPA has failed to perform a

mandatory duty which remains an ongoing requirement under the statute, there is no need for a

statute of limitations.6

        EPA asserts that allowing a plaintiff to be able to sue forever is “a result which the Court



         6
           There is also no statute of limitations with regard to citizen suits that may be brought
 against violators pursuant to 15 U.S.C. §2619(a)(1). Because such suits are to be brought against
 parties “alleged to be in violation of this chapter . . . to restrain such violation,” it only applies to
 current, continuing violations, and no statute of limitations is needed.

                                                   12
should avoid.” EPA Motion at 12. However, EPA’s only authority for this claim is a Supreme

Court case which invokes the very factors that are not present here:

       permitting plaintiffs who know of the defendant's pattern of activity simply to wait,
       ‘sleeping on their rights,’ . . . as the pattern continues and treble damages
       accumulate, perhaps bringing suit only long after the memories of witnesses have
       faded or evidence is lost.

Klehr v. A.O. Smith Co., 521 U.S. 179, 187 (1997) (citations and internal quotation marks

omitted). EPA never directly confronts the argument that there is no need for “repose,” and

indeed public policy militates against “repose,” when a federal agency remains in dereliction of a

mandatory duty imposed by Congress. Under the Supreme Court’s ruling in Havens Realty, there

is no need for a statute of limitations in the situation presented here.

       As shown in the next section, even where section 2401(a) is the applicable limitations

provision, these types of considerations have led courts to refuse to apply its six year limit to

challenges to failures to perform nondiscretionary duties.

       B. The Statute of Limitations at Section 2401(a) Does Not Apply to Failures to
       Perform Nondiscretionary Duties

       Even assuming that section 2401(a), and not TSCA § 2619(b), supplies the applicable

statute of limitations here, the limitation would not be applicable to the failure to act alleged here.7

As the court stated in The Wilderness Society v. Norton, 434 F.3d 584, 588 (D.C. Cir. 2006), the

D.C. Circuit has never applied section 2401(a)’s six year limitation period to a suit alleging an

agency’s failure to meet a statutory deadline. A significant portion of EPA’s brief is occupied


        7
           Conceptually, the cases reaching this conclusion can be viewed as holding that the
 statute of limitations does not apply, or that the continuing violation exception to the statute of
 limitations applies, or that the statute does not begin to run as long as the agency has not acted.
 Under any of these formulations, the same basic reasoning is used to support the conclusion that
 the case may proceed.

                                                  13
with a fruitless attempt to distinguish Wilderness Society. EPA Motion at 13-19.

       EPA argues that the statute of limitations discussion in Wilderness is dicta because the

case was dismissed on other grounds. However, the D.C. Circuit carefully analyzed the issue and

relied on prior Circuit rulings which held (not in dicta) that cases brought more than six years

after the expiration of a statutory deadline were not barred. In re United Mine Workers of

America International Union, 190 F.3d 545 (D.C. Cir. 1999) (suit brought 8 years after failure to

meet statutory deadline); In re Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000) (suit timely

where statutory deadline missed by nine years). Wilderness, 434 F.3d at 588-89. The rationale for

allowing these suits was that the agency was engaged in a continuing violation with respect to its

mandatory duties, and that the plaintiffs did “not complain about what the agency has done but

rather about what the agency has yet to do.” Id., quoting United Mine Workers, 190 F.3d at 549.

       The rule in the D.C. Circuit is consistent with other case law and with the policies

underlying equitable exceptions to statutes of limitations. It “strikes the correct balance between

the government's interest in finality and a challenger's interest in contesting an agency's alleged

overreaching.” Wind River Mining, 946 F.2d at 715-16. As several courts have noted,

imposition of the statute of limitations in these circumstances would contravene Congress’ intent

to have the agency perform the nondiscretionary duties which Congress assigned.

       [W]here there is only one body charged with a duty by Congress, and that body
       cannot be forced by the Court to carry out its duty because of a statute of
       limitations, the practical result is a repeal of the mandatory duty itself. The statute
       was enacted in order to create a perpetual scheme for protecting the nation’s water
       quality, and does not envision an intent for the mandatory duties of the
       Administrator to expire after a period of nonfeasance. . . . The practical effect of
       imposing a statute of limitations in a suit such as this is to repeal the mandatory
       duties established by Congress and the President without the constitutionally
       prescribed scheme for altering a statute of the United States.


                                                  14
        . . . it would be perverse to excuse that duty after sustained nonfeasance.

NRDC v. Fox, 909 F. Supp. 153, 159 (SDNY 1995). Likewise here, there is no claim that EPA’s

duty to issue regulations to protect the public with regard to lead-based paint renovation and

remodeling activities has in any way been altered or rescinded.8 “[I]t would be perverse to excuse

that duty after sustained nonfeasance.” 909 F. Supp. 2d at 159.

       The court reached a similar conclusion in Southern Appalachian Biodiverstiy Project v.

U.S. Fish and Wildlife Service, 181 F. Supp. 2d 883, 887 (E.D. Tenn. 2001). That case held that a

suit filed more than six years after a statutory deadline for designating critical habitat for an

endangered species was not time-barred under section 2401(a), because “[i]f the Service’s failure

to designate critical habitat is time-barred, then no one may compel the Service to do so. An

anomaly would be presented.” Id. (emphasis in original).       The court rejected the argument which

the government presents here: that the statute of limitations began to run the day after the action

was required to be completed, and that there was no indication that Congress intended the

government to be forever vulnerable to stale claims. The court concluded that the will of

Congress was expressed in the provision of the Endangered Species Act which directed the

agency to designate critical habitat, and that the agency’s non-action was a continuing violation of

that provision. “The statute of limitations commences to run anew each and every day that the

Service does not fulfill the affirmative duty required of it. In short, the statute of limitations has

never commenced to run.” Id.


         8
            The fact that EPA recognizes its continuing duty to comply with TSCA is evidenced by
 the fact that after this case was filed, the Agency issued proposed regulations purported to
 implement its statutory duty to regulate renovations and repairs involving lead-based paint. 71
 Fed. Reg. 1588 (Jan. 10, 2006). The proposed regulations, however, have never been finalized,
 and do not meet the requirements of the statute.

                                                   15
        In American Canoe Ass’n v. EPA, 30 F Supp.2d 908, 925-926 (E.D. Va. 1998), the court

held that

        application of a statute of limitations to a claim of unreasonable delay [under a
        statutory deadline] is grossly inappropriate, in that it would mean that EPA could
        immunize its allegedly unreasonable delay from judicial review simply by
        extending that delay for six years. . . . EPA’s delay is better understood as a
        continuing violation, which plaintiffs may challenge at any time provided the delay
        continues.

(citation and footnote omitted).9

        Another way in which this issue has been analyzed to reach the same result is by

determining when a cause of action “accrues” pursuant to section 2401(a). The courts in this

Circuit and elsewhere have held that the action “accrues,” and the statute of limitations begins to

run, when there is final agency action. E.g., Harris v. Federal Aviation Admin., 353 F.3d at 1010.

Where there is a failure to act, there cannot be final agency action, and the statute of limitations

cannot begin to run. Save the Valley v. EPA, 223 F. Supp. 2d 997, 1001, n. 1 (S.D. Ind. 2002) ( “a

failure to act cannot logically even trigger a statute of limitations”).

        EPA has two basic arguments against the application of these precedents. The first is that,

based on Chung and Felter, there can be no equitable exceptions to the statute of limitations

unless “the injury to be redressed is of a type familiar to private litigation.” EPA Motion at 11,

quoting, Chung 333 F.3d at 277. As explained above in Part I, this argument is faulty because the

courts in Chung and Felter were attempting to determine whether, under Irwin, equitable tolling




         9
           See also, Eli Lilly & Co. v. EPA, 615 F. Supp. 811, 822 (S.D. Ind. 1985) (the statue of
 limitations does not begin to run on a continuing violation until “the wrong is over and done
 with”). Accord, Sierra Club v. Penfold, 664 F.Supp. 1299 (D. Ak. 1987), aff’d on other grounds,
 857 F.2d 1307 (9th Cir. 1988).

                                                   16
would apply to a particular claim.10 Even assuming that equitable tolling is unavailable here,

which is not the case, this would not mean that there are no other possible equitable exceptions to

the statute of limitations, i.e., that it is jurisdictional in nature. As explained in Wilderness

Society, which was decided after Chung, the D.C. Circuit has repeatedly ruled that there is an

exception where the government has failed to carry out a nondiscretionary duty in compliance

with a statutory deadline. 434 F.3d at 588-89.

       EPA’s other argument relies almost entirely on the decision in Center for Biological

Diversity v. Hamilton, 453 F.3d 1331 (11th Cir. 2006), which determined that the continuing

violations doctrine was not available with respect to the failure to meet a statutory deadline to

designate critical habitat under the Endangered Species Act (“ESA”). EPA Motion at 12-13.

This Eleventh Circuit case, of course, is not binding on this Court, unlike the D.C. Circuit

precedents reaffirmed in Wilderness Society. Moreover, the statute of limitations discussion in

Wilderness Society, while not itself binding precedent, is a very recent indication that this Circuit

would be likely to adhere to its prior precedents rather than change course to adopt the Eleventh

Circuit’s approach in Hamilton.

        In addition, Hamilton is distinguishable because it rests on factors peculiar to the ESA.

The court began its analysis by stating that “[t]o determine whether the continuing violation

doctrine applies, we must consider the text of the relevant statute, which is the Endangered

Species Act.” 453 F.3d at 1334. The court concluded that the text of the ESA supported a single

violation that accrued on the day following the deadline, rather than a continuing violation. This


         10
            As discussed in Part IV, below, Chung’s supposition that equitable tolling applies only
 to injuries of a type familiar to private litigation is not tenable in light of subsequent Supreme
 Court precedent.

                                                   17
interpretation of the ESA was based in part on the fact that the provision requiring the designation

of a critical habitat by a certain date directed that it “be based on such data as may be available at

the time.” The court found that this language supported the conclusion that the duty was not

ongoing, but to be exercised at a particular point in time. The court noted that it would be

anomalous for Congress to require the Secretary to ignore new information when promulgating

the rule. 453 F.2d at 1335.11

       In contrast, there is nothing in the TSCA provision at 15 U.S.C. §2682(c)(3) to indicate

that EPA’s duty is not ongoing. The Administrator was directed to issue revised regulations

which would apply training and certification requirements to renovation or remodeling activities

in certain buildings that create lead-based paint hazards. There is nothing that ties that duty to a

particular point in time or indicates that the duty would lapse if not carried out within a certain

time period.

       Finally, EPA’s contention that it only violated its duty of timeliness on one day, October

29, 1996 (the day after the statutory deadline), EPA Motion at 13, is absurd. It implies that

Congress wanted EPA to issue regulations on a certain date, and if that date passed, it had no

further interest in the subject. EPA’s position creates the further anomaly that if it had missed the

statutory deadline by one day, it would have been in violation of the statute and subject to the

imposition of relief under the citizen suit provision. Yet, because it has missed the deadline by

nine years, it is immune from suit and no relief for its violation is available. EPA’s mandatory




        11
           As described above, the court in Southern Appalachian Biodiverstiy Project reached
 the opposite conclusion with regard to the same provision of the ESA.

                                                  18
duty has not lapsed, and its failure to carry out that duty is a continuing violation.12

IV. EVEN ASSUMING THAT SECTION 2401(a) APPLIES HERE, PRINCIPLES OF
EQUITABLE TOLLING ALLOW COURT REVIEW AND ENFORCEMENT

       The facts demonstrate that from at least as early as 1996, EPA has publicly stated its

intention to issue final regulations concerning lead-based paint activities as required by TSCA, 15

U.S.C. § 2682(c)(3). See, Exhibits 1 - 4. In 2004, EPA claimed it would establish a voluntary

program to regulate lead-based paint activities. Then, in 2005, EPA ended the deception by

withdrawing the suggestion that it would even propose a voluntary program. Only after the EPA

was faced with a notice of intent to sue followed by the filing of a lawsuit did the agency issue an

inadequate proposed rule.

       Realizing that the facts demonstrate that EPA has deceived the public and the Congress for

almost a decade on this issue, the Agency takes an understandably defensive posture in its Motion.

EPA argues that principles of equity and fairness should not be considered in this case. Having

lulled the public into believing that it would issue a regulation, EPA now wants to take advantage

of its deception. EPA Motion at 7-13 (arguing that neither equitable tolling nor continuing

violation theory should be applied here).

       EPA attempts to avoid equity and fairness by arguing that case law addressing the issue of

equitable tolling in cases involving the government only permit equitable tolling in circumstances

where the claim is similar to a claim that could be brought against a private party. EPA Motion



         12
           EPA also attempts to distinguish Wilderness Society on the basis that it involved a
 claim for unreasonable delay under the APA, while TSCA provides a statutory deadline. EPA
 Motion at 15-16. This is a distinction without a difference since Wilderness Society based its
 holding on earlier D.C. Circuit cases which concerned the violation of a statutory deadline. See,
 p.14, supra.

                                                   19
at 9. EPA’s argument is untenable, as it demands that the Court validate deception or fraud

perpetrated by the government.

        Under the great weight of case law, equitable tolling principles would be available to

Plaintiffs here. The case law that has examined the use of equitable tolling has recognized that it

is the duty of the courts to assess the equities in cases where the facts indicate that strict

application of a statute of limitations would result in an unjust outcome. American Pipe &

Construction Co. v. Utah, 414 U.S. 538, 558 B 559 (1974) (the mere fact that a federal statute

providing for substantive liability also sets a time limitation upon the institution of suit does not

restrict the power of the federal courts to hold that the statute of limitations is tolled under certain

circumstances not inconsistent with the legislative purpose); Holmberg v. Armbrecht, 327 U.S.

392, 397 (1946) (equitable doctrines are read into every federal statute of limitations); Irwin, 498

U.S. at 95-96 (the "same rebuttable presumption of equitable tolling applicable to suits against

private defendants should also apply to suits against the United States"); Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982) ("filing a timely charge of discrimination ... is not a

jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of

limitations, is subject to waiver, estoppel, and equitable tolling"); Leavell v. Kieffer, 189 F.3d 492,

494-95 (7th Cir. 1999) (statute of limitations not jurisdictional but instead affirmative defense).

        The Court in Irwin expressed its intent to create a uniform rule regarding the application of

equitable relief in cases involving the government: “We think that this case affords us an

opportunity to adopt a more general rule to govern the applicability of equitable tolling in suits

against the Government.” 498 U.S. at 95. The Irwin Court held that:

        Once Congress has made such a waiver, we think that making the rule of equitable


                                                   20
       tolling applicable to suits against the Government, in the same way that it is
       applicable to private suits, amounts to little, if any, broadening of the congressional
       waiver. Such a principle is likely to be a realistic assessment of legislative intent
       as well as a practically useful principle of interpretation. We therefore hold that
       the same rebuttable presumption of equitable tolling applicable to suits against
       private defendants should also apply to suits against the United States. Congress,
       of course, may provide otherwise if it wishes to do so.

498 U.S. at 95-96.

       The holding in Irwin means that there is no meaningful distinction in the application of

equitable tolling principles to private party litigation and litigation involving the government.

       EPA argues that subsequent decisions have clarified the class of cases to which the rule of

Irwin applies. EPA Motion at 8. The sole decision cited for this proposition is Chung. In Chung,

the court determined whether equitable tolling principles could be applied to litigation against the

government under the Privacy Act. The court ruled: “[w]e conclude, therefore, that a Privacy Act

claim for unlawful disclosure of personal information is sufficiently similar to a traditional tort

claim for invasion of privacy to render the Irwin presumption applicable.” Chung, 333 F.3d at

277. The Courts reliance on the characterization of a claim against the government as a

traditional tort claim in order to apply equitable principles is inconsistent with Irwin’s broad rule.

       Additionally, the analysis in Chung did not have the benefit of the later Supreme Court

decision in Scarborough. There the Supreme Court discussed the rule in Irwin as applied in

litigation involving the government. The Court stated that “[b]ecause many statutes that create

claims for relief against the United States or its agencies apply only to Government defendants,

Irwin’s reasoning would be diminished were it instructive only in situations with a readily

identifiable private-litigation equivalent.” 541 U.S. at 422. Also, Chung’s speculation that the

Supreme Court would not apply equitable tolling where there is not a private action analogue is


                                                  21
further undermined by the fact that the only Supreme Court cases that determined that equitable

tolling did not apply, Scarborough and Brockamp, did so on other grounds, and not because the

claims there were not “of a type familiar to private litigation.”

       Thus, application of equitable principles to litigation involving the government does not

require a demonstration that the cause of action at issue has a “readily identifiable private-

litigation equivalent.” Scarborough, 541 U.S. at 422.

       From 1996 through 2001, EPA asserted in the Federal Register that it planned to

promulgate final rules consistent with its obligations under TSCA (15 U.S.C. § 2682). See,

Exhibits 1- 4. In 2004, the Agency claimed it would create a voluntary program, but then

withdrew this proposal in 2005. Complaint ¶s 25- 27. Plaintiffs filed a notice of intent to sue and

a lawsuit shortly thereafter.

       Plaintiffs were induced into believing that the EPA was going to issue regulations in 1998,

1999, 2000, and 2001. Exhibits 1- 4. There was no reason for the Plaintiffs to file a lawsuit when

EPA was declaring that it was about to issue the regulations. See, e.g., In re Barr Laboratories,

930 F.2d 72 (D.C. Cir. 1991) (holding that the mere fact that there is a statutory deadline does not

guarantee that the court will award equitable relief). These facts meet the standards for equitable

tolling, because they amount to a situation where “the complainant has been induced or tricked by

his adversary’s misconduct into allowing the filing deadline to pass,” Irwin, 498 U.S. at 98, and

where “the plaintiff despite all due diligence is unable to obtain vital information bearing on the

existence of his claim.” Chung, 333 F.3d at 278-79.

       EPA should not be rewarded for its deceptive practices. If the Court finds that section




                                                  22
2401(a) applies here, it should rule that the deadline for filing was equitably tolled.13

                                             CONCLUSION

       For the foregoing reasons, Plaintiffs’ complaint is not barred by the statute of limitations.

Congress directed EPA to issue regulations intended to protect the public, and especially children,

from a major health hazard. EPA misled the public into believing that those regulations were

forthcoming for nearly a decade. The Court should not permit EPA to use that fact to evade this

important public health responsibility altogether. The Motion to Dismiss should be denied.

                               Respectfully submitted,

                                       /S/

                               Richard E. Condit, D.C. Bar #417786
                               General Counsel
                               Paula Dinerstein, D.C. Bar # 333971
                               Senior Counsel
                               Public Employees for Environmental Responsibility
                               2000 P St., N.W. Suite 240
                               Washington, D.C. 20036
                               Tel. 202-265-7337

                               Counsel for Plaintiffs

Dated: October 13, 2006




        13
           EPA claims that Plaintiffs did not allege facts in their complaint to support the
 application of equitable tolling here. EPA Motion at 9. If the Court concludes that it may not
 consider the attached exhibits in support of equitable tolling, Plaintiff’s request that the Court
 either convert EPA’s motion into one for summary judgment in order to consider matters outside
 the pleadings, or grant leave to amend Plaintiff’s complaint pursuant to Fed.R.Civ.P. 15(a).
                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                           )
PUBLIC EMPLOYEES FOR                       )
ENVIRONMENTAL RESPONSIBILITY,              )
        et al.,                            )
                                           )
                Plaintiffs,                )
                                           )
                        v.                 )                       No. 05-cv-02437 (CKK)
                                           )
STEPHEN JOHNSON,                           )
Administrator, United States Environmental )
Protection Agency,                         )
                                           )
                Defendant.                 )
                                           )
__________________________________________)

             [PROPOSED] ORDER DENYING EPA’S MOTION TO DISMISS

       Upon consideration of EPA’s Motion to Dismiss Plaintiff’s Complaint for Lack of Subject

Matter Jurisdiction, and Plaintiffs’ Opposition thereto, the Court finds that EPA’s Motion should

be denied.

       It is this _____ day of _____________, 2006, hereby

       ORDERED, that EPA’s Motion to Dismiss Plaintiff’s Complaint for Lack of Subject

Matter Jurisdiction is hereby DENIED.



                                             _______________________________
                                             Honorable Colleen Kollar-Kotelly
                                             United States District Judge

								
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